Paraka v Peng [2016] PGSC 93; SC1780 (16 December 2016)

SC1780

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 157 OF 2015

PAUL PARAKA
Appellant

V

SENIOR CONSTABLE PIUS PENG & CHIEF INSPECTOR TIMOTHY GITUA
First Respondents

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

RABURA MATAIO, CHIEF MIGRATION OFFICER,
Third Respondent

BETTY PALASO, COMMISSIONER GENERAL OF INTERNAL REVENUE
Fourth Respondent

Waigani: Poole J, Ipang J, Polume-Kiele J
2016: 1 July, 9, 14 September, 16 December

APPEALS – appeals from District Court to National Court – whether an appeal lies from a decision of the District Court in committal proceedings to the National Court

PRECEDENT – doctrine of stare decisis – whether Supreme Court is bound by its own decisions – circumstances in which Supreme Court should depart from its own decisions.

The appellant was charged by the police with various criminal offences and was subject to committal proceedings in the District Court. He was aggrieved by decisions of the District Court, including a decision that he be committed for trial to the National Court. He appealed to the National Court against those decisions. The National Court upheld an objection to competency of the appeals and found them to be an abuse of process, as there is no avenue available to appeal against a decision of the District Court on any interlocutory ruling, including the decision to commit a person to trial in the National Court. The appellant then appealed to the Supreme Court against the decision of the National Court.

(1) The decision of the National Court under appeal was consistent with previous decisions of the Supreme Court, that there is no avenue available to appeal against a decision of the District Court on any interlocutory ruling, including the decision to commit a person to trial in the National Court.

(2) The doctrine of stare decisis (precedent) dictates that the Supreme Court should only overrule its decisions in previous cases with great caution, in exceptional circumstances, following full argument and preferably when the Court is comprised of a greater number of Judges than in the earlier case and perhaps when the Chief Justice is presiding.

(3) No exceptional circumstances were shown to exist in the present case. The law as pronounced by the Supreme Court in previous cases must prevail: there is no avenue available to appeal against a decision of the District Court on any interlocutory ruling.

(4) The appeal was without merit and was dismissed with costs.

Cases Cited:
Papua New Guinea Cases

ABCD Transport Ply Ltd v Sakaip (1997) N1577
Aihi v Isoaimo (2013) SC276
Asoka Seneviratne v Graham Chaffey (2000) N2014
Derbyshire v Tongia [1984] PNGLR 148
Grand Chief Sir Michael Thomas Somare v Chronox Manek (2011) SC1118
Jimmy Mostata Maladina v Posain Poloh (2004) N2568
Kiau Ninkints v Moki Rumints [1990] PNGLR 123
Korowi & Ors v Aaron & Ors SCA Nos 39, 43, 44 and 45 of 2016, 01.07.16 unreported
Lionel Gawi v The State (2006) SC850
MVIT v Reading [1988-89] PNGLR 610
Pato v Manjin (1999) SC622
Paul Paraka v Senior Constable Pius Peng (2014) N6120
Peter Rose v Yamu Samuel [1987] PNGLR 1
Rakatani Mataio v The State (2007) SC865
Re Bail Act Chapter 340, Application by Paul Tiensten (2014) SC1343
Re Upai Kunangel Amin [1991] PNGLR 1
Sakawar Kasieng v Andrew Baigry (2004) N2562
SCR No 2 of 1992 [1992] PNGLR 336
The State v Tanedo [1975] PNGLR 395
Wartoto v The State (2015) SC1411
Zanepa v Kaivovo (1999) SC623

Overseas Cases

Ex parte Cousens; Re Blackett and Anor [1946] NSWStRp 36; (1947) 47 SR (NSW) 145
Moran v Lloyds (1981) 1 Lloyds Reports 423

Counsel

P Paraka, the appellant, in person
F Barton-Keene, for the Respondents

16^th December, 2016

1. BY THE COURT: This is our decision on an appeal by Mr Paul Paraka against orders of the National Court made by Justice Makail in his decision handed down on the 20^th of November 2015 dismissing two appeals, CR (APP) No 61 of 2014 and CR (APP) No 12 of 2015. In his decision, the primary judge found that s219 of the District Courts Act under which the appeals were brought did not permit an appeal from an interlocutory decision of a District Court (Paul Paraka v Senior Constable Pius Peng (2014) N6120).

2. The appellant was charged with conspiracy, misappropriation and money laundering. These criminal proceedings concern the Paraka Lawyers Legal Costs and related matters. The appellant applied to have the proceedings NCC 942-956 of 2014, Police v Paul Paraka; NCC 1289-1306 of 2013 & NCC 33-36 of 2014, Police v Paul Paraka consolidated and effectively to stay those criminal proceedings.

This appeal

3. The appeal is based on the proposition that the primary judge erred in finding that s 219 of the District Courts Act did not allow an appeal against an interlocutory ruling or interlocutory orders of the District Court in any criminal proceedings.

4. The appeal lies without leave of Court pursuant to ss 14(1)(a)(b) and (3)(b)(iii) of the Supreme Court Act Ch No 37. Four grounds of appeal are raised:

(i) His Honour erred in law in adopting a restrictive view of the right of appeal provided in s 219 of the District Courts Act in ruling that no appeal lies to the National Court from any interlocutory rulings or interlocutory orders of the District Court in any criminal proceedings;

(ii) His Honour erred in law in reading the words “order” conjunctively with the preceding word “conviction” and also erred in law in interpreting the words “adjudication of a court” with reference to only a final order under s 219 of the District Courts Act and therefore erred in law in dismissing both appeals in the National Court;

(iii) In the alternative, his Honour erred in law in failing to rule that any interlocutory orders or adjudication of the District Court are appealable to the National Court under s219 of the District Courts Act and that the National Court had jurisdiction to deal with the appeals;

(iv) His Honour therefore erred in law in ruling that there is no right of appeal under s 219 of the District Courts Act, in respect of interlocutory orders of the District Court dated 7 August 2014 in respect of proceedings NCC 942-956 of 2014 between the Police v Paul Paraka and another dated 15 April 2015 in respect of the proceedings NCC 1289-1306 of 2013 & NCC No. 33-36 of 2014 between the Police and Paul Paraka.

Preliminary matters

5. On the first day of hearing of this appeal, the Court noted that the appellant had failed to file and serve written submission/extract of submission by 15 June 2016 as directed by the Court. Only the respondents had filed their written submission on 23 June 2016.

6. Further, objections were raised by the appellant with regard to the composition of the bench. The Court was of the view that since the grounds of appeal raised questions of law, the objection to the composition of the bench should be refused.

7. This Court also raised matters in relation to four other appeals: SCA Nos 39, 43, 44, and 45 of 2016 between Philemon Was Korowi, Paul J Othas, Jacob Yafai and Harvey Bill Nii v Sgt Elizah Aaron, Snr Constable Pius Peng, Snr Constable Basi Sopata and The State. The appellants in these appeals were charged with allegations of conspiracy, misappropriation and money laundering together with the appellant. The appellants had applied by notice of motion to effectively stay their criminal proceedings pending hearing and determination of charges against them and to have their proceedings consolidated with that of the appellant, in the present appeal. The nature of the claim and grounds of appeal in SCA Nos 39, 43, 44 and 45 of 2016 are similar in nature to the present appeal. The Supreme Court in its decision on SCA Nos 39, 43, 44 and 45 of 2016, delivered on 1 July 2016 considered the question of whether an appeal lies to the National Court under s 219 from an interlocutory decision of the District Court: Korowi & Ors v Aaron & Ors SCA Nos 39, 43, 44 and 45 of 2016, 01.07.16 unreported. In addition, the Supreme Court considered whether the reading and interpretation of the words “conviction order or adjudication of a court” be given a wider definition so as to enable appeals to the National Court against interlocutory decisions of the District Court in committal proceedings.

8. These are the same issues raised in this current appeal. During the preliminary stage of the hearing, it was agreed that parties were at liberty to make submissions as to whether a positive obligation exists for this Court to follow a previous decision. The Court then adjourned to the August 2016 Supreme Court sittings. The appeal was then listed for the August 2016 Supreme Court sittings. However, it did not proceed then. It was subsequently listed for hearing on 9 September 2016 as a specific fixture.

9. On 1 July 2016 the Supreme Court dismissed SCA Nos 39, 43, 44 and 45 of 2016 as being without merit: Korowi & Ors v Aaron & Ors SCA Nos 39, 43, 44 and 45 of 2016, 01.07.16 unreported.

10. This Court convened on 9 September 2016. The appellant however requested for an adjournment due to ill health. This Court granted such adjournment and the appeal was re-listed for hearing on 14 September 2016.

11. On 14 September 2016 the appellant again failed to file written submissions as required under Order 11, Rule 16 of the Supreme Court Rules. The appellant during the hearing of the appeal attempted to hand up a copy of his written submission (30 pages). This Court however declined to accept the hand up written submission for the reasons that it was not in compliance with Order 11, Rule 16 of the Supreme Court Rules: it exceeded 10 pages. The appellant then made oral submissions.

Appellant’s submissions

12. The appellant principally argued that the primary Judge erred by deciding that no appeal lies to the National Court under s219 from an interlocutory decision of the District Court. The appellant argues that the primary judge erred in finding that s219 of the District Courts Act did not allow an appeal against any interlocutory ruling or interlocutory orders of the District Court in any criminal proceedings. In addition, the appellant also argued that the word “adjudication” as used in s219(1) of the District Courts Act be given a wider meaning to give basis for appeal to the National Court on interlocutory decisions of the District Court. The appellant argued that the dictionary definitions of the word "adjudication" to mean, arbitration, judging, decision, pronouncement, ruling, settlement, resolution, finding, verdict, conclusion, decree and order. Using this definition' alone, he contended for the word "adjudication" to be given a broad meaning to include all of the possible meanings of the word.

13. This Court alerted the appellant to the recent decision in Korowi & Ors v Aaron & Ors SCA Nos 39, 43, 44 and 45 of 2016, 01.07.16 unreported. The appellant argued that it should not apply to him. The appellant contended that his case is different and should be heard independently. Furthermore, he argued that this Court is not bound by a previous decision and as such this appeal should be allowed; a courageous argument, indeed.

Second respondent’s submissions

14. The Court notes that there was no appearance by all except the second respondent. Ms Barton-Keene for the second respondent argued that appeals from a District Court to the National Court are available only after a final decision and certainly not out of any interlocutory decision. Counsel for the State referred to and relied on the decision of the National Court in Asoka Seneviratne v Graham Chaffey (2000) N2014, per Injia J (as he then was) which held that no appeal lies to the National Court under s 219 from an interlocutory decision of the District Court. Further, in Paul Paraka v Police and The State (2015) N6120, the Court also ruled that s 219 did not authorise any appeals out of interlocutory decisions of the District Court.

15. Ms Barton-Keene argued that the appeal has no merit and is misconceived and argued we should adopt the Supreme Court decision in Korowi & Ors v Aaron & Ors SCA Nos 39, 43, 44 and 45 of 2016, 01.07.16 unreported. She submitted that this appeal should be dismissed. To support her argument, Ms Barton-Keene submitted that both Order 18 of the National Court Rules and s219 of the District Courts Act are intended to apply only to final decisions of the District Court. There is no jurisdictional basis for an appeal against an interlocutory order of the District Court. Further, the District Courts Act does not provide for an appeal from an interlocutory order of the District Court.

16. As regard the appellant’s argument that the word ‘adjudication’ be given a wider definition, Ms Barton submitted that this argument is misconceived because no appeal can be mounted on an interlocutory order of the District Court. The words ‘adjudication’ and ‘conviction’ refer to final orders of the Court. The word ‘adjudication’ used in s219 of the District Courts Act is a legal provision and its definition as legal term is as provided for in Black’s Law Dictionary, 2^nd Edition, which defines the word “adjudication” in terms of “giving or pronouncing a judgment or decree in a cause”. This is reference to decisions of finality (see Maniwokin v Toburua [1973] PGSC 30; [1973] PNGLR 710 (per Prentice J) where his Honour construed the word “adjudicate” to the natural meaning of a decision: it connotes a decision of finality binding both parties upon a point argued between them. There are no provisions under the District Courts Act that allow for appeals on interlocutory decisions similar to s 13 of the Supreme Court Act which provides for leave of court to be sought to file an appeal on an interlocutory decision of the National Court. In the circumstances, the primary judge was correct in finding that no appeal lies to the National Court under s. 219 from an interlocutory decision of the District Court and dismissing the appeals. Ms Barton-Keene submitted that this Court in the exercise of its inherent powers do what is necessary for the proper administration of justice and dismiss the appeal for abuse of process.

17. Ms Barton-Keene submitted further that the appellant’s arguments are identical with those advanced in Korowi & Ors v Aaron & Ors and argued we should apply the judgment handed down in that decision to this appeal. With regard to the proposition that this Court is not bound by a previous decision pursuant to Sch 2.9(1) of the Constitution, Ms Barton-Keene submits that in the interest of consistency and certainty in the application of law, a departure from the previous decision shall only be allowed in exceptional circumstances (Aihi v Isoaimo (2013) SC276). Ms Barton-Keene argued that the appellant has not displayed any exceptional circumstances to warrant this Court’s departure from its previous decision. The primary judge made no error of law and the Appeal should therefore be dismissed as misconceived and or alternatively dismissed for being an abuse of the process.

Consideration

18. We set out s 219 of the District Courts Act and s 14 of the Supreme Court Act:

Section 219 (appeal to National Court) states:

“(1) Subject to Subsections (2) and (3), a person aggrieved by a conviction order or adjudication of a Court, including an adjudication or order dismissing an information or complaint, may appeal to the National Court from the conviction, order or adjudication, in accordance with this Part.

(2) Except as provided in Subsection (3), Subsection (1) shall not be deemed to authorize an appeal by the State against the dismissal of an information.

(3) Where, in the opinion of the National Court, the matter is one of such public importance that leave should be granted, the Secretary for Justice may—

(a) appeal against a decision of a District Court on behalf of a party; or

(b) intervene in an appeal to the National Court.

(4) The Public Prosecutor may appeal to the National Court against any decision of the District Court as to sentence in respect of any indictable offence triable summarily under Section 420 of the Criminal Code.”

19. The District Court is a creature of statute. There are no specific provisions in the Act that provide for appeals to the National Court against interlocutory rulings or decisions. This is similar to s 14(3)(b) of the Supreme Court Act. Section 14 (civil appeals to the Supreme Court) states:

(1) Subject to this section, an appeal lies to the Supreme Court from the National Court—

(a) on a question of law; or

(b) on a question of mixed fact and law; or

(c) with the leave of the Supreme Court, on a question of fact.

(2) An appeal does not lie from an order of the National Court made by consent of the parties.

(3) No appeal lies to the Supreme Court without leave of the Supreme Court—

(a) from an order allowing an extension of time for appealing or applying for leave to appeal; or

(b) from an interlocutory judgement made or given by the National Court except—

(i) where the liberty of the subject or the custody of infants is concerned; or

(ii) in cases of granting or refusing an injunction or appointing a receiver; or

(iii) in such other cases prescribed by the Rules of Court as are in the nature of final decisions; or

(c) from an order of the National Court as to costs only that by law are left to the discretion of the National Court.

(4) An order refusing unconditional leave to defend an action shall not be deemed to be an interlocutory judgement.

20. In ABCD Transport Pty Ltd v Sakaip (1997) N1577 Injia J (as he then was) noted:

"The District Court is a creature of statute whose practice and procedure is prescribed by statute.... The practice and procedure relating to appeals from a decision of the District Courts is set out in Part XI (ss 219 - 246) of the District Courts Act. There is no provision for an Appellant whose appeal is struck out or dismissed for want of prosecution due to his nonappearance at the hearing, to apply to the National Court, to set aside the order dismissing or striking out the appeal. For instance, there is no provision similar to s 25 of the District Courts Act which empowers the District Court to set aside an ex-parte order upon application by an aggrieved person. Where there is no such statutory provision, this Court cannot create one. The National Court may have power under the National Court Rules to entertain an application to set aside an ex-parte order but those rules do not apply to appeals against a decision of the District Court. The only next step open to the appellant was to lodge an appeal against the National Court decision to the Supreme Court. I rule that this application is incompetent as being not allowed for under the District Courts Act."

21. The above principle was applied in Kiau Ninkints v Moki Rumints [1990] PNGLR 123 and Peter Rose v Yamu Samuel [1987] PNGLR 1 and Asoka Seneviratne v Graham Chaffey (2000) N2014.

22. This appeal arises from criminal proceedings at the committal level. The Courts in PNG have taken a firm position against litigants who employ tactics to delay and or otherwise interfere with the criminal process. In Wartoto v The State (2015) SC1411 Kirriwom and Kandakasi JJ said:

"...The recent decision of this Court in Grand Chief Sir Michael Thomas Somare v Chronox Manek (2011) SC1118 considered and determined this issue. The first thing the Court noted in that case was that the National and the Supreme Courts cannot easily and readily intervene early in the criminal justice process, before their formal and proper conclusion. In support of that proposition, the Court referred to its earlier decision in Pato v Manjin [1999] PNGLR 6. In that case, Mr Pato tried to get the National Court to injunct or prevent police officers from arresting and charging him over alleged criminal conduct. Ruling against that, the Court said: “'Nevertheless, the most important consideration of all, in our view is whether a civil Court should restrain a criminal investigation by police exercising their constitutional functions to investigate, charge and prosecute a person suspected of having committed a crime or criminal offence. That to us is the most fundamental issue here.”

We hold the view that the balance of convenience did not favour the applicant therefore the granting of the interlocutory injunction should not be sustained and extended.”

23. The doctrine of stare decisis (to stand by things decided) is a term used to describe the doctrine of “precedent”: it is necessary to abide by former precedents when the same points arise again in litigation. Furthermore the authoritative text on “Precedent in English Law (Clarendon Press, Oxford, 1961) by Rupert Cross explains, at page 4:

“Judicial precedent has some persuasive effect almost everywhere because stare decisis (keep to what has been decided previously) are a maxim of practically universal application. The peculiar feature of the English doctrine of precedent is its strongly coercive nature.”

24. Our Constitution expressly recognises the doctrine of stare decisis. In Korowi & Ors v Aaron & Ors the Supreme Court referred to Mataio v The State (2007) SC865 and In Re Bail Act Chapter 340, Application by Paul Tiensten (2014) SC1343, which discussed the doctrine of stare decisis and its relevance to our legal system. Those cases involved applications for bail after conviction and sentence. Both applicants applied to the Supreme Court for bail pending the determination of their respective appeals against conviction. However the issue here was whether the Supreme Court should intervene or interfere or overrule itself on a matter already decided and refuse to intervene in the administrative and investigative processes that lead to criminal or other charges and orders issued by the Supreme Court.

25. The Supreme Court in its determination of the cases held that refusal to intervene in such processes is for very good reason. The Court referred to Lord Denning's judgment in Moran v Lloyds (1981) 1 Lloyds Reports 423 where his Lordship explained that superior courts had historically not intervened or interfered with such processes. His Lordship spoke of some of the kinds of risks any intervention or interference by the superior courts might bring to bear. The Court considered that the operation of the doctrine of stare decisis guarantees certainty and consistency in judicial decision-making. Schedules 2.8 (effect of part 5) and 2.9 (subordination of courts) of the Constitution state:

Schedule 2.8

“(1) Nothing in this Part affects or is intended to affect, except to the extent specifically set out in this Part—

(a) the legal doctrine of judicial precedent (also known as stare decisis); or

(b) the principles of judicial comity; or

(c) the rules of private international law (also known as conflict of laws); or

(d) the legal doctrine known as res judicata, or the further development and adoption of those doctrines, principles and rules in accordance with Part 3 of this Schedule (development of an underlying law for Papua New Guinea).

(2) Except as provided by or under an Act of the Parliament, this Part does not apply to or in respect of village courts.”

Schedule 2.9

“(1) All decisions of law by the Supreme Court are binding on all other courts, but not on itself.

(2) Subject to Schedule 2.10 (conflict of precedents), all decisions of law by the National Court are binding on all other courts (other than the Supreme Court), but not on itself (except insofar as a decision of the National Court constituted by more Judges than one is of greater authority than a decision of the Court constituted by a lesser number).

(3) Subject to this Part, all decisions of law by a court other than the Supreme Court or the National Court are binding on all lower courts.

(4) In Subsection (3), "lower court", in relation to a matter before a court, means a court to which proceedings by way of appeal or review (whether by leave or as of right) lie from the first-mentioned court in relation to the matter.”

26. This Court should not overrule itself unless parties have been allowed to make full arguments on the point. This Court has had the opportunity to consider these arguments. Though the Supreme Court is not bound by its previous decisions, it should only overrule them with great caution, in exceptional circumstances , following full argument and preferably when the Court is comprised of a greater number of Judges than in the earlier case and perhaps when the Chief Justice is presiding (Public Prosecutor v John Aia [1978] PNGLR 224; MVIT v Reading [1988-89] PNGLR 610; Derbyshire v Tongia [1984] PNGLR 148; SCR No 2 of 1992 [1992] PNGLR 336; Re Upai Kunangel Amin [1991] PNGLR 1; Zanepa v Kaivovo (1999) SC623; Lionel Gawi v The State (2006) SC850).

27. In Rakatani Mataio v The State (2007) SC865 the Supreme Court held that:

“Under the doctrine of stare decisis which is part of our underlying law, there exists a positive obligation to follow a previous decision in the absence of justification for departing from it. In his authoritative text Precedent in English Law (Clarendon Press, Oxford, 1961), Rupert Cross wrote this (at page 4):

Judicial precedent has some persuasive effect almost everywhere because stare decisis (keep to what has been decided previously) are a maxim of practically universal application. The peculiar feature of the English doctrine of precedent is its strongly coercive nature.”

28. This precedent was applied in Re Bail Act Chapter 340, Application by Paul Tiensten (2014) SC1343.

29. In Rimbink Pato v Manjin (supra) and The State v Tanedo [1975] PNGLR 395 this Court referred to the decision in Ex parte Cousens; Re Blackett and Anor [1946] NSWStRp 36; (1947) 47 SR (NSW) 145, in which, Sir Frederick Jordan, speaking for the Court in the context of and in respect of the nature of committal proceedings and the attitude of superior courts regarding review of committal decisions said:

"This is essentially an executive and not a judicial function; and although magistrates have been exercising this authority for nearly 400 years no instance can be found of a superior court having interfered with a magistrate by certiorari or prohibition in his exercise of this function: Cox v Coleridge [1822] EngR 19; (1882) 1 B &C 37."

30. These important practical aspects of the doctrine of stare decisis must not be overlooked in determining this matter. This Court is essentially bound by the ruling of the Supreme Court in Korowi & Ors v Aaron & Ors SCA Nos 39, 43, 44 and 45 of 2016, 01.07.16 unreported unless the most extenuating circumstances are shown. They have not been.

31. The appellant has employed a process that is not provided for in the District Courts Act, either generally or specifically in the committal process. He made an application by notice of motion for stay, indefinite adjournment or consolidation of proceedings with other related proceedings on foot. Having failed there, he appealed to the National Court, though there is no foundation in the District Courts Act authorising such appeals. The learned primary judge, correctly, raised the issue of jurisdiction with the appellant, heard his submission and came to a decision which is consistent with the law discussed above.

32. The arguments asking for a wider meaning to be given to the word "adjudication" as is used in s 219(1) of the District Courts Act, are not supported by any case or other authority.

33. With regard to the issue of whether the doctrine of stare decisis should apply to this case, the appellant has not presented any arguments why the long established legal principles in PNG under the Constitution should be bypassed.

Conclusion

34. The appeal is without merit. We dismiss the appeal with costs to the respondents, such costs to be taxed if not agreed.
____________________________________________________________
Paul Paraka in Person
Solicitor-General: Lawyer for the Respondents